The Republicans in the Senate are outraged to discover that the Democrats have decided to move Sonia Sotomayor’s nomination to the Supreme Court to hearings in the Senate Judiciary Committee that will begin on July 13. As reported in the New York Times, “the Senate Republican leader, Mitch McConnell of Kentucky, accused the Democrats of acting “unilaterally” and of “being dismissive of the minority’s legitimate concerns for a fair and thorough process.” “There is no point in this,” Mr. McConnell said. “It serves no purpose other than to run the risk of destroying the kind of comity and cooperation that we expect of each other here in the Senate.”

Sonia Sotomayor meeting with Barack Obama shortly before her nomination to the Supreme Court of the United States, May 21, 2009. (Credit: Pete Souza—Official White House Photo)

Of course, this is the same Senator McConnell who was willing to consider a “nuclear option” to forever end filibusters of judicial nominees and who complained bitterly about Democrats obstructing the nomination hearings of John Roberts just four years ago. Roberts, for the record, was confirmed in 72 days, and if Judge Sotomayor is confirmed on the last day before August recess (the now-expected schedule), she will have been confirmed in exactly 72 days.

But of course, these shifting postures are all to be expected. If Diogenes were carrying his lamp looking for a consistent man (or woman), the Senate would be the last place he would try.

What Really is the Senate’s Role?

The quarrel about when and how to have hearings, and in the case of Senator Tom Coburn of Oklahoma, whether or not to attend them, points to a more interesting feature of this whole arrangement: the fact that there is no constitutional guidance about what exactly the Senate is supposed to do with a Supreme Court appointment.

Article II, Section 2, Clause 2: [The President] “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law.”

This is one of the most amorphous requirements in the Constitution. There is no guidance as to how the Senate is to offer “advice” or how it is to express “consent.” In theory, and generally in practice, “consent” has been easier to instantiate. We expect a majority vote of the Senate to demonstrate that a judge has met the body’s approval, but it is not actually all that simple.

For most of the 20th century, the vote of the full Senate was often a formality, particularly for judges below the Supreme Court level. A complex and informal practice of collecting “blue slips” allowed home state Senators to accept or reject (and sometimes even to select) federal judges who would sit in their states. The Senate as a body generally followed these recommendations with very few exceptions until the 1990s. Judges who did not get the support of their home state Senators were usually rejected by never receiving a formal vote.

During particularly contentious periods, judicial appointments have been decided on near-party line votes, and in this atmosphere, it is still unclear whether the magic number for “consent” is now 60 (the filibuster proof super-majority that has no basis in the constitutional text) or 51. This issue leads to funny semantics because of subsequent developments. The Senate speaks of a measure (or a nomination) that does not have the 60 votes as “lacking a Unanimous Consent Agreement (UCA)” for floor action. But of course, the Constitution calls for “consent,” not “unanimous consent,” and it is very unclear just how much dissent could be consistent with consent.

Ironically, during the spring 2005 showdown over judicial appointments, the Senate Republicans preferred to speak of the so-called “nuclear option” (a ruling from the chair barring filibusters of nominations) as the “constitutional option” (Trent Lott actually coined both phrases), as in “restoring the constitutional standard of consent by simple majority.” Of course if that were clearly the constitutional standard today, Judge Sotomayor would have this in the bag.

“Advice” is an even thornier problem. Presumably the Judiciary Committee’s hearings with nominees serve, in some measure, as a form of giving “advice” on the nomination – We can at least say with certainty that the long-winded and political speeches that are sometimes offered as “questions” (in only the loosest sense) are presented as “advice,” sometimes to the nominee, sometimes to the President or other members of the Judiciary Committee, and sometimes to the CSPAN audience.

Committee hearings on judicial nominees are actually a relatively recent innovation. The Judiciary Committee gained jurisdiction over judicial nominations in 1868, but did not actually hold on the record hearings with a nominee until the nomination of Harlan Stone in 1925. According to the Judiciary Committee’s website, Sherman Minton refused a request to appear before the committee when nominated in 1949 and was nevertheless confirmed. Every Supreme Court nominee since 1955 has given testimony, but the practice of holding hearings on many Appellate and District Court judges did not begin until considerably later.

Might we conceive of “advice” in a different sense? Certainly. In fact, President Obama, like many but not all presidents before him, invited Senators to offer names, vet some possibilities, and express concerns before a nominee was chosen. In many respects, this prior consultation looks more like a literal reading of “advice,” as in “seeking advice,” than anything that happens subsequently.

If the Senate received the opportunity to offer “advice,” should they then, as a matter of courtesy, “consent”?

The Constitution speaks of the two practices as fundamentally intertwined, but it is not at all clear in what sense “and” is used. Is it just a matter of a temporal relationship – first advice, then consent – two separate activities performed independently of one another but always in this order? Or, does it imply an obligation – having offered advice, now provide consent?

We do know this much. The Senate has created an immense set of rules and practices for itself in the 220 years since this Constitution took effect, and its members have a difficult time separating its own historical practices from its externally imposed constitutional obligations. The Senate, and its Judiciary Committee, would never stand for Sherman Minton’s refusal to appear for hearings today. It would be taken as a constitutional affront, much as Senator Coburn considers the idea that he might have to start the hearings before he feels personally prepared for them to be a constitutional affront. The Constitution itself seems open to a number of possible practices, but we can be certain that every Senator will act as though his or her own understanding of personal duty, or expediency, will be justified as allegiance to that ambiguous document.